Finnegan v. Missouri Pac. Ry. Co.

• Decision Date: 10 June 1912
• Citation: 149 S.W. 612
• Parties: FINNEGAN v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

149 S.W. 612

FINNEGAN v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 10, 1912.

On Motion for Rehearing, July 2, 1912.

1. MASTER AND SERVANT (§ 291) — ACTIONS FOR INJURIES—INSTRUCTIONS.

Plaintiff, an engineer in charge of a railway train, was injured in a collision at a junction point with another train which was pulling off of the main line onto a branch line. At the junction were two switch targets showing red or white lights as set. West of the junction, from which direction plaintiff's train was approaching, was a semaphore showing either a red or a white light. Plaintiff's testimony tended to show that the semaphore showed a white light, indicating that the track was clear, and that he was not required to observe the switch lights, and he admitted that he did not look for those lights. Defendant's evidence tended to show that the rules of the company required engineers approaching the junction to have their trains under control, to look for the switch lights, and stop the train if the lights so indicated. The court refused to charge that if it was the engineer's duty to watch for the switch lights and stop if he could not see the lights, and if he failed to look for such lights and his failure contributed to the accident, he could not recover, even though the semaphore showed a white light and the railroad company was otherwise negligent. Held, that defendant was entitled to this instruction under the evidence.

2. TRIAL (§ 296)—ACTIONS FOR INJURIES—INSTRUCTIONS—CURE OF ERROR.

The failure to give such instruction was not cured by the giving of an instruction that if the rules of the company required engineers to have their trains under control and to stop if the switch was not right and the track was clear, and if plaintiff did not obey such rule, but approached the junction point without being prepared to stop and without looking for the switch light, he was guilty of negligence and could not recover, since such instruction, to entitle defendant to a verdict, required the jury to find that plaintiff did not have his train under control and did not look for the switch lights, while the refused instruction would have entitled defendant to a verdict if he did not look for the switch light, even if he had the train under control

On Motion for Rehearing.

3. APPEAL AND ERROR (§ 1177)—DISPOSITION — AWARDING NEW TRIAL — FAILURE OF PROOF.

On the reversal of a judgment for plaintiff for a failure of proof, it is proper to remand a cause for a new trial where it is possible that facts not fully disclosed in the record may be made to appear on the new trial.

4. JUDGMENT (§ 581)—CONCLUSIVENESS—REVERSAL FOR FAILURE OF PROOF.

Where all the facts are fully developed on a fair trial on the law, a reversal without granting a new trial is res judicata and precludes the plaintiff from bringing a new action.

5. APPEAL AND ERROR (§ 1123)—DETERMINATION — NUMBER OF JUDGES NECESSARY — CALLING SPECIAL JUDGE.

Where a majority of the court votes to reverse, part, constituting a minority of the court, voting to reverse outright, and the other part to reverse and remand, it is proper to remand the cause for a new trial instead of calling in a special judge.

Valliant, C. J., and Kennish and Woodson, JJ., dissenting in part.

In Banc. Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Mitchell Finnegan against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Action for personal injuries sustained while in the employ of defendant as one of its locomotive engineers. On the night of June 21, 1903 (Sunday), plaintiff was running an engine which was pulling a freight train from Pleasant Hill to Jefferson City. This train was composed of 24 loaded cars and a caboose. The cars were principally loaded with live stock. At Cole Junction, three or four miles west of Jefferson City, is the junction point of what is known as the river route and the main line of defendant's railroad. In other words, at Cole Junction the river route line leaves the main line of defendant's road and proceeds through Boonville, Marshall, and Lexington, and thence to Kansas City. At the time named, the train of the plaintiff, in passing through Cole Junction, ran into another freight train which was bound west over the river route, and which at the time of the collision was in motion and was partially off of the main line on the river route line. A good portion of it, however; was yet on the main line. In the wreck which followed the collision of plaintiff's engine, the fireman and head brakeman were killed, and the plaintiff quite seriously injured. The head brakeman appears to have been on the engine with the engineer and fireman. For the injuries sustained the plaintiff sued for $50,000 and recovered a verdict for $25,000, and from a judgment on such verdict this appeal was taken. Numerous grounds of negligence were alleged in the petition, but the case was submitted to the jury upon one ground only which is fairly stated in plaintiff's second assignment of negligence which reads thus: "The defendant, its agents, servants, and vice principals, carelessly and negligently failed and neglected to so arrange the lights on the order board at Cole Junction so that a red light would be shown to the plaintiff, when they knew, or by the exercise of ordinary care might have known, that said west-bound freight train had not cleared the main track upon which the train of the plaintiff was approaching."

The instruction which submitted the question of negligence to the jury reads: "The court instructs the jury that if you believe and find from the evidence that on the 21st day of June, 1903, it was the duty of the plaintiff in the course of his employment, as an engineer of defendant, to run his train through Cole Junction without stopping; that at the time he was approaching said Cole Junction there was a west-bound freight train upon and occupying the main track upon which the train of plaintiff was approaching; that the operator at Cole Junction knew, or by the exercise of ordinary care might have known, that said west-bound freight train was upon and occupying the track upon which the train of the plaintiff was approaching; that at said time defendant had a signal board at Cole Junction for the purpose of displaying signal lights, a red light, under the rules and customs of defendant signifying that plaintiff should stop, and a white light signifying that he should proceed; that at said time it was the duty of the operator at said Cole Junction in the course of his employment to so arrange the said signal lights that a red light should be shown to the plaintiff; that said operator failed and neglected to so arrange the signal lights on the order board at Cole Junction so that a red light would be shown to the plaintiff, but so arranged said signal lights that a white light was shown to the plaintiff; and that said act on the part of said operator, if you so find, was negligent and careless; and if you further believe and find from the evidence that by reason of the negligence and carelessness, if any, of said operator, as submitted to you above, the plaintiff did not stop his said train, but proceeded onward, and that the trains in question were thereby caused to come into violent collision with each other and plaintiff was injured thereby, and that the plaintiff was at the time in the exercise of ordinary care himself—then your verdict should be for the plaintiff."

The evidence is exceedingly voluminous; but, as the plaintiff has limited his submission to the one ground of negligence, the record Is to some extent simplified and shortened. The answer is in effect a general denial and a plea of contributory negligence. Reply a general denial.

Numerous errors are complained of by the defendant, and among them it is vehemently urged that the trial court erred in not giving a peremptory instruction for the defendant. This will call for a fuller review of the facts before closing the opinion. Upon some of the points in issue the evidence is hopelessly conflicting, and in some instances such direct conflict is found as would almost bespeak perjury upon one side or the other. Now as to the things shown by the mass of testimony: Plaintiff was an experienced engineer, and familiar with the conditions in and about Cole Junction. Plaintiff's train was a regular freight train known as No. 76. On the day in question it left Pleasant Hill, Mo., late under its schedule time, and with the instructions to make good time. The train was due at Cole Junction at about 8:50 p. m. and arrived there a few minutes late. The situation around Cole Junction becomes material. Plaintiff was, as indicated, coming into Cole Junction from the west. At Cole Junction was an exceedingly small house used for a telegraph station. To the northwest of it was the section house. To the west of it was a double semaphore, by which the telegraph operator from his room was able to throw either a red or white light to the west, or the same kinds of lights toward the east. To the west of Cole Junction there is a curve in the main line of defendant's tracks, so that this semaphore sign is not visible until the engine gets within about 1,200 feet of the station. To the east of the station a short distance was the point where the river route line diverged from the main line. At or near this point were two switch targets, which would show either red or green according as they had been set for the occasion. These two switch targets with their lights were so situated that, when the west-bound train was being pulled in from the main line to the river route line, these lights would be obstructed by the cars in the train. From the evidence it further appears that west of Cole Junction on the main line there is an upgrade, so that in coming in from the west a train would be coming downgrade. It bad rained that afternoon...